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Loss Adjusting, Technology and a little bit of Law Loss Adjusting, Technology and a little bit of Law

Loss Adjusting, Technology and a little bit of Law - PowerPoint Presentation

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Loss Adjusting, Technology and a little bit of Law - PPT Presentation

Loss Adjusting Technology and a little bit of Law Author David Flint 1 Not so new Technology Drones Author David Flint 2 Drones Advantages Makes the risk management process faster and simpler Can now have eyes in the sky to assess claims without the need to be on the ground ID: 766640

loss damage product physical damage loss physical product limited drones damaged privacy ewca property glass civ policy bacardi insurance

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Loss Adjusting, Technology and a little bit of Law Author: David Flint 1

Not so new Technology - Drones Author: David Flint 2

Drones Advantages Makes the risk management process faster and simpler Can now have “eyes in the sky” to assess claims without the need to be on the ground. Assessments of buildings after structural or electrical damage, fire and storms. Mapping areas for fires, floods and storms. 3

Drones 4

Drones 5

Drones 6

Drones – Taking images without permission !!! ROYALS FORCED TO QUIT THEIR HOME AFTER PRIVACY AND DATA BREACH The couple were forced to leave their home after the photos were published in newspapers including The Times. Splash chartered a helicopter in January to take images of the couple’s private home. The pictures taken by Splash included one of the inside of a bedroom at the privately-rented Oxfordshire property. 7

Drones What can an individual do if they object to being filmed? Common law position Starting position 80 years ago – Victoria Park Racing v Taylor – No authority which shows any general right of privacy exists. 2001 – Australia Broadcasting Corporation v Lenah Game Meats Pty Ltd – this case does not stand in the path of the development of a cause of action for (invasion of privacy). 2008 – Giller v Procopets – Respondent without the consent of the appellant distributed a tape of them having sex. She had consented to some of the films but not all of them. The court accepted damages for breach of confidence were available to the plaintiff. The essence of the case is where the plaintiff has been embarrassed by the exposure of private information. 8

Drones Nuisance This cause of action has been used to protect privacy if it is associated with interests in land. Nuisance cannot be established where, a defendant is merely looking onto a neighbour’s property. It is different if there is persistent spying. Trespass The law of trespass has been used to eject the media from property on which they are attempting to film or record the occupants. There is no common law right “not to be photographed or filmed” Also no prohibition on taking photographs of private property from public land unless it amounts to stalking or intent to pry. 9

Drones Legislation – A couple of surprises !!!!! Criminal Code Section 227A contains two separate offences about observing or recording a person in breach of their privacy. Offence to observe or visually record another person in a private place or doing a private act, without consent and in circumstances where a reasonable adult would expect to be afforded privacy. Private Act - showering or bathing, using a toilet, another activity in which a person is in a state of undress, or intimate sexual activity that is not ordinarily done in public. Invasion of Privacy Act 1971 Is outdated and limited in its scope. The Act restricts the use of listening devices to overhear, record, monitor or listen to private conversations. 10

Drones Legislation – A couple of surprises !!!!! When working with councils and State Government Agencies Human Rights Act 2018 S.25 – A person has the right not to have the person’s privacy, family, home .. unlawfully or arbitrarily interfered with. Can be subject to a human rights complaint if person feels their privacy has been interfered with. 11

Drones Qld law reform commission issued a report in Dec 2018. It considered that a new legislative framework to protect the privacy of individuals in the context of the use of civil surveillance devices and technologies is necessary. It was recommended the legislation should strike a balance between the interests in the use of surveillance and the privacy rights and interests of individuals who may be harmed or affected if surveillance is unreasonably intrusive. Watch this space!!! 12

Drones Commonwealth Privacy Act 1988 could possibly also have application Example – If video footage is taken which is used to promote the benefits of using drone technology which contains sensitive information about a person such as their religious belief. 13

Drones - Conclusion Changes to legislation are on the horizon which are more likely to regulate the use of drones. Expect to see increased protection of individuals privacy rights. Need to ensure that drone operators are kept appraised of the law and don’t invade people’s privacy more often than not by accident. 14

Drones - Conclusion 15

Damage and loss of use Physical damage - the famous shellfish case Ranicar v Frigmobile Pty Ltd Facts Shellfish were stored at a safe-for-domestic-consumption temperature but above a temperature prescribed for export. Unable to be exported but could be sold locally.Was there "damage“? 16

Damage and loss of use Physical damage - the famous shellfish case Ranicar v Frigmobile Pty Ltd Conclusion Damage requires:physical alteration in the product.impaired value or usefulness of a property. The change in temperature had "undeniably involve[d] a physical change to a substance and... that change had the effect of removing one of the primary qualities which the scallops had - their exportability”. 17

Damage and loss of use Physical damage - Bacardi Breezers - defective or damaged? Messer UK Limited v Thomas Hardy Packaging Limited (2002) EWCA Civ 549 FactsCourt had to consider a contractual provision capping compensation in respect of "direct physical damage to property".Packaging company acquired carbon dioxide from Messer for mixing with concentrate to make Bacardi Breezers . 18

Damage and loss of use Physical damage - Bacardi Breezers - defective or damaged? Messer UK Limited v Thomas Hardy Packaging Limited (2002) EWCA Civ 549 FactsMesser's carbon dioxide was contaminated with benzene and Bacardi recalled the products, and recovered the costs from the packaging company. The packaging company then sought recovery from Messer.The Breezers were not damaged, because the mix of concentrate and water itself ceased to exist (as was always intended) and the finished product came into existence at the moment of creation. What resulted was not damaged concentrate, but a defective new product. Therefore the cap did not apply. 19

Damage and loss of use Physical damage - Bacardi Breezers - defective or damaged? Messer UK Limited v Thomas Hardy Packaging Limited (2002) EWCA Civ 549 FactsInterestingly, the cap probably would have applied to a claim for loss of the concentrate itself, but that was far less valuable to Bacardi than the loss of the entire batch of finished product. 20

Damage and loss of use Physical damage - Bacardi Breezers - defective or damaged? Messer UK Limited v Thomas Hardy Packaging Limited (2002) EWCA Civ 549 DecisionThe Breezers were not damaged, because the mix of concentrate and water itself ceased to exist (as was always intended) and the finished product came into existence at the moment of creation. What resulted was not damaged concentrate, but a defective new product. Therefore the cap did not apply.Cap probably would have applied to a claim for loss of the concentrate itself, but that was far less valuable to Bacardi than the loss of the entire batch of finished product. 21

Damage and loss of use Physical damage - Incorrect welding damages steel supports Promet Engineering (Singapore) Pte Ltd v Sturge (1997) EWCA Civ 1358 Cracking to the legs of an offshore accommodation platform caused by incorrect welding was not a "defect" but "damage”. Was caused by being subjected to stresses which they were unable to resist due to latent defects, which were wrongly profiled welds and incipient fatigue cracks. 22

Damage and loss of use Physical damage – Aspen Insurance UK Limited v Adana Construction Limited (2015) EWCA Civ 176 Facts Improperly installed connecting dowels led to the toppling of a crane together with its intact concrete base from four reinforced concrete piles. The dowels connected the crane support to a concrete base. The connecting dowels had not broken, but rather had simply not been installed sufficiently deeply to generate enough friction to resist the compressive and tensile loads of a crane that was too heavy for the base. 23

Damage and loss of use Physical damage – Aspen Insurance UK Limited v Adana Construction Limited (2015) EWCA  176 Facts The policy generally excluded cover for "loss of or damage to any superstructure arising from the failure of the Assured's foundation works to perform their intended function". It also excluded from the product liability cover "liability arising in connection with the failure of any Product to fulfil its intended function. 24

Damage and loss of use Physical damage – Aspen Insurance UK Limited v Adana Construction Limited (2015) EWCA  176 Decision Court found that the crane base (being a concrete block constructed on site) was not a "product". The dowels had not failed to perform their intended function, the cover could respond to claims by the seriously injured crane operator and other injured parties. The court concluded that the damage to the crane itself was excluded as it was a superstructure on the base and the damage to the crane arose from the failure of Adana's foundation works to perform their intended function. 25

Damage and loss of use Damaged glass case - Product liability policy does not respond Pilkington United Kingdom Ltd v CGU Insurance PLC (2004) EWCA Civ 23 Facts Involved the installation of damaged glass into a train station. The glass panels were defectively manufactured and fractured after they were installed. The owner of the station put in place safety features and sued the main contractor for the costs. The main contractor sued Pilkington, which supplied the glass. 26

Damage and loss of use Damaged glass case - Product liability policy does not respond Pilkington United Kingdom Ltd v CGU Insurance PLC (2004) EWCA Civ 23 Facts The glass did not cause damage to any other part of the station. The loss simply related to remedying the consequences of the defective glass. 27

Damage and loss of use Damaged glass case - Product liability policy does not respond Pilkington United Kingdom Ltd v CGU Insurance PLC (2004) EWCA Civ 23 Facts Pilkington's product liability policy insured: Loss of or physical damage to physical property not belonging to the Insured... caused by any commodity, article or thing supplied by the Insured. 28

Damage and loss of use Damaged glass case - Product liability policy does not respond Pilkington United Kingdom Ltd v CGU Insurance PLC (2004) EWCA Civ 23 Decision As the station had not suffered any physical harm and the harmful effect of any later defect or deterioration was contained within the glass, the policy did not respond. 29

Damage and loss of use "Loss of use" cover possibly broader application Can be fairly easy to show that there has been a "loss of use" of physically damaged property, loss of use may not need to be contingent upon physical damage depending on the policy. Where owners were not allowed back into their undamaged home as a result of a declaration that the area was dangerous, that loss was not (insured) "physical loss or damage to property" but rather "loss" to the owner: Kraal v The Earthquake Commission (2015) NZCA 13 30

Damage and loss of use "Loss of use" cover possibly broader application Technology Holdings Ltd v IAG NZ Ltd and Anor (2008) NZHC 1228 Facts Flood occurred in a basement where EFTPOS terminals were being stored and resulted in humidity levels which were higher than normal (without physical damage to the terminals). Issue - whether an insurance policy which provided cover for "loss or damage to property" responded after the manufacturer withdrew its warranty and the network operator refused to allow the terminals to be connected to the network. 31

Damage and loss of use "Loss of use" cover possibly broader application Technology Holdings Ltd v IAG NZ Ltd and Anor (2008) NZHC 1228 Outcome If sensitive electronic equipment was required to be stored in specific conditions which are not maintained due to an unforseen event and, as a result, the equipment could not be used as intended, then that may constitute damage despite there being no physical alteration or change (even temporarily) to the equipment. 32

Damage and loss of use "Loss of use" cover possibly broader application Technology Holdings Ltd v IAG NZ Ltd and Anor (2008) NZHC 1228 Lesson from decision As electrical and electronic components continue to increase in buildings this could lead to more loss of use claims where no obvious physical damage has been incurred. 33

The Trump moment 34